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From T. H. Farrer 3 March 1871

3, Gloucester Terrace, | Regent’s Park.

3 March 1871

My dear Mr Darwin,

What you say about the tools and arms looks most probable: and may also apply to canoes huts &c.1 Would it apply to food—captured animals &c? But it would scarcely apply to the principal personal property of savages—cattle—which in a nomad & wild country are essentially communal. There is even a trace of it still in the common village dairies of the Swiss Alps. And if our own law is any test a developed law of personal property is a much later thing than a law of real property.2

But a point in Maine’s book3 which struck me particularly, was the late and modern character of rights of the individual person not only in respect of property but in all ways. The Patriarch, or the Chieftain of the Scotch or Irish clan, had almost absolute power over its members—not because he was the strongest or most selfish—but because he represented, defended, fed and managed for the community. This power was given a prominent place in civilized law by the Patria Potestas of the Romans. And the relics of it remain with us in the legends of legal wife-selling, & wife-beating; in the form of action by which a father recovers damages for the seduction of a daughter, as for the loss of her services—and in the common law inability of a married woman to hold property— There was an exceedingly interesting speech by Jessel illustrating this in the debates on the married womens property Bill.4

In short it seems from the history of law as if the earliest thing regarded was the community or the family; & the last thing the individual person.

Forgive this long yarn—& dont answer—but enjoy Down & quiet in peace

Sincerely yours | T H Farrer

I must add one thing from my own special shop.5

I am satisfied that the earliest form of law or custom concerning Ships & property in Ships was one in which the Ship was regarded as an integral thing owned & worked in common by all who belonged to her, so that all took a share in the risks and a share in the profits.

There is strong evidence of this in the old laws, and there are certain rudiments which have been only cut out of our own law in my time—such as “Freight the mother of wages”,6 &c, which become explicable on the above supposition & I think on no other

T H F

Footnotes

George Jessel, in his speech on 14 April 1869 in the House of Commons on the Married Women’s Property Bill, remarked that the position of a wife in English law was similar to that of a slave. He noted (Hansard parliamentary debates 3d ser. vol 195 (1869), col. 770): The Roman law originally regarded the position of a wife as similar to that of a daughter, who had no property, and might be sold into slavery at the will of her father. When the Roman law became that of a civilized people, the position of the wife was altogether changed. She was allowed, as was proposed by this Bill, to have the absolute disposal of her property, and full power of contracting, with the sole exception that her immoveable property was not to be alienated without the consent of her husband.

Freight the mother of wages: the adage is a reference to the practice of paying seamen’s wages from the proceeds earned from freight, so that if the ship was lost, wages would not be paid (see Hodges 1996, p. 37).

Summary

On private property, with regard to tools and arms; comments on Maine’s book and the history of law regarding property.